Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 9TH DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944 WP(C) NO. 34729 OF 2022 PETITIONER/S:
HIRISE BUILDERS AND DEVELOPERS KAYATH ROAD, TELLICHERRY REPRESENTED BY ITS MANAGING PARTNER MASHOOD. C.P, PIN - 670101 BY ADV RAJESH NAMBIAR RESPONDENT/S:
1 STATE TAX OFFICER WORKS CONTRACT AND LUXURY TAX, STATE GST DEPARTMENT, KANNUR, PIN - 670002 2 THE COMMISSIONER OF STATE TAX OFFICE OF THE COMMISSIONER OF STATE GOODS AND SERVICE TAX DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANATHAPURAM , PIN - 695001 ADV/ THUSHARA JAMES (SR GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 34729 OF 2022 2 JUDGMENT
Petitioner suffered orders imposing penalty for the assessment years 2009-10 and 2010-11 under the Kerala Value Added Tax Act. It is the case of the petitioner that there was no assessment of any tax payable by the petitioner in respect of those years. Petitioner applied for grant of the amnesty under the 2019 -Amnesty scheme. It is not disputed that the petitioner did not pay the entire amounts found due from the petitioner under the Amnesty Scheme of 2019 and it only made some part payments. Thereafter, the petitioner applied for Amnesty under the 2020 Scheme and again under the 2021 Scheme. It is not disputed that the amounts found payable by the petitioner under the amnesty Schemes of 2020/2021 were not paid by the petitioner. The petitioner now wants to settle the liability under the 2022 Amnesty Scheme.
2.
Learned counsel appearing for the petitioner submits that the provisions of the Amnesty Scheme provide that there will be a waiver of the entire amount of penalty and interest and the amount payable under the Amnesty Scheme would be the amounts of tax payable by the petitioner. It is submitted that since there is no adjudication of the amounts of tax payable by the petitioner for the assessment year 2009-10 and 2010-11, the
WP(C) NO. 34729 OF 2022 3 petitioner may be given an opportunity to appear before the 1st respondent for adjudication of the amount of tax payable for the assessment year 2009-10 and 2010-11, for the purpose of applying the provisions of the Amnesty Scheme of 2022.
3.
Learned Senior Government Pleader vehemently opposes the grant of any relief to the petitioner. It is pointed out that the amounts payable by the petitioner have been properly adjudicated under the Amnesty Schemes of 2019, 2020 and 2021 and these amounts have been duly communicated to the petitioner. It is submitted that part payment made by the petitioner will be adjusted against the arrears and the provisions of the 2022 Amnesty Scheme can be applied only against the amounts payable as on date. It is submitted that the petitioner has no real grievance and the petitioner is trying to delay the payment of amounts rightly due to the Government.
4.
Having heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader for the respondents, I am of the view that since there was no adjudication of the tax amount payable by the petitioner for the assessment years 2009-10 and 2010-11, a direction can be issued to the 1st respondent to determine the amounts payable by the petitioner as tax for the aforesaid two assessment years
WP(C) NO. 34729 OF 2022 4 and for the purposes of applying the provisions of the 2022 Amnesty Scheme. I am also of the view that this does not cause any prejudice to the respondents as the petitioner has time till 31.12.2022 to make payments under the Amnesty Scheme of 2022.
Accordingly, the writ petition will stand disposed of, directing the 1st respondent to consider and pass orders on Ext.P4 application filed by the petitioner, after affording to the petitioner an opportunity of being heard. It is made clear that after consideration of Ext.P4, if the respondent finds that the amounts mentioned as payable by the petitioner in terms of the Scheme of 2022, as reflected in Ext.P3 proceedings, is different on account of the amount so adjudicated, a fresh order/proceedings shall be issued under the Amnesty Scheme of 2022. The petitioner shall mark appearance before the 1st respondent at 11.00 A.M on 16.11.2022 and the issue shall be adjudicated as above on the same day, after affording an opportunity of hearing to the petitioner.
The writ petition will stand disposed of as above.
sd/- GOPINATH P.
JUDGE ajt
WP(C) NO. 34729 OF 2022 5 APPENDIX OF WP(C) 34729/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE CIRCULAR NO: 5/2022 DATED 25.03.2022 ISSUED BY THE 2ND RESPONDENT Exhibit P2 TRUE COPY OF THE APPLICATION DATED 30.08.2022 UNDER THE AMNESTY SCHEME -2022 Exhibit P3 TRUE COPY OF THE INTIMATION DATED 5.09.2022 Exhibit P4 TRUE COPY OF THE REPRESENTATION OF THE PETITIONER DATED 17.10.2022 Exhibit P5 TRUE COPY OF THE REPLY OF THE 1ST RESPONDENT DATED 21.10.2022 TO THE EXT P4 REPRESENTATION ALONG WITH THE ENCLOSED COPY OF THE RECTIFICATION ORDER DATED 30.03.2022